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Published online by Cambridge University Press: 04 May 2017
In his instructions to the American delegation to the Second Hague Conference, Secretary of State Root pointed out as the weakness of the present system of arbitration the prevalence of diplomatic ideals instead of purely judicial ideals in practice and procedure, and stated it as his opinion that the creation of a truly permanent international court composed of professional judges, who should act under a sense of judicial as distinguished from diplomatic responsibility, would increase the confidence of nations in arbitration and render the recourse to this method of settling international disputes much more frequent. Secretary Root’s statement is so important in itself, the reasoning is so clear and unanswerable, the proposal to establish a permanent international court of justice so cleancut and precise, and the details which he specifies so simple and apparently self-evident, that I shall quote and comment briefly upon this passage in the instructions. “There can be no doubt,” he says, “that the principal objection to arbitration rests not upon the unwillingness of nations to submit their controversies to impartial arbitration, but upon an apprehension that the arbitrations to which they submit may not be impartial. It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them, under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents. The two methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely differing results. It very frequently happens that a nation which would be very willing to submit its differences to an impartial judicial determination is unwilling to subject them to this kind of diplomatic process.”
The substance of the present article has appeared in The Hague Peace Conferences of 1899 and 1907, Vol. 1, pp. 188–193, 460–464; and in the following addresses: 1. Judicial Proceedings as a Substitute for War or International Self-redress, published by the Maryland Peace Society, February, 1910. 2. Progress toward an International Court of Arbitral Justice, delivered at the Lake Mohonk Conference on International Arbitration, May 19, 1910, and printed in the Report of the Proceedings for that year.
1 Foreign Relations of the U. S. (1907), part II, p. 1135.
2 Foreign Relations of the U. S. (1907), part II, p. 1135.
3 Ibid.
4 Ibid.
5 See appendix to this article, p. 341.
6 See appendix to this article, p. 343.
7 Ancient Law (Pollock’s edition), p. 362.
8 Gaius, Institiones juris civilis (Poste’s edition), ch. IV, § 17.
9 Gaius, Institutiones juris civitts (Poste’s edition), ch. IV, § 16.
10 Ancient Law (Pollock’s edition), pp. 363-364.
11 See appendix to this article, p. 348.
12 See appendix to this article, p. 349.
13 See appendix to this article, p. 349.
14 See appendix to this article, pp. 349-350.
15 See appendix to this article, pp. 351-352.
16 Pages 354-355.
17 See appendix to this article, p. 353.
18 See appendix to this article, p. 355.
19 For an account of Articles of Confederation and the proceedings had under Article 9, see J. C Bancroft Davis’ learned note, in 131 U. S. Rep., pp. XII-XIV, LXIII. Professor Jameson’s article entitled “The Procedure of the Supreme Court,” in the Essays on the Constitutional History of the United States; Carson’s Supreme Court of the United States, pp. 66-76.
20 See appendix to this article, p. 357.
21 Missouri v. Illinois, 200 U. S. 496, 518.
1 Cf. Bernhöft, Zeitschr. für vergl. R. W., II p. 321 seq., also Post, Anfänge des Staats-und Rechtslebens, p. 247 seq. ; also the etymology of arbiter supports my assumption: arbiter (derived from ad and bitere) is he who proceeds to a question. Even in Cicero, it is repeatedly used in the sense of testis, the eye-witness. It is this very quality which makes of him the impartial factor in the wager.
2 I shall, of course, not assert that the original arbitral-court constantly appeared in the form of the wager-court illustrated in the text; but, that this form appears as one perfectly adequate for the times, and therefore, that it was probably in very frequent use. The form of the arbitral-court conjectured by Muther, Sequestration und Arrest, p. 8 seq., in regard to movable property seems to me, however, not in any way to meet the conditions of the period to which we have referred.
1 This evidence was kindly communicated to me by my colleagues, Bernhöft and Jolly.
2 Information furnished by Jolly from his translation of the larger Nârada (page 6) which, already in print, is to appear at Oxford in the Sacred Books of the East.
1 Also a note by Kohler in regard to the Chinese Civil Law, Zeitschr. f. vgl. R. W., VI p. 386 : “Each of the parties to the lawsuit brings along a quantity of gold or metal and a bundle of arrows,” and this additional observation: “Hence, the universal appearance of the lawsuit-wager, the summa sacramenti” is true even here.
2 I am indebted to my colleague, K. Lehmann, for this information from the literature of Norse law.
1 Cf. v. Amira, Altschwedisches Obligationenrecht 1882, 32. Emil Wolff, jemförande ratts-historiska studier till de tolf taflornas Lag, Göteborg 1883, p. 61 seq., the latter of which, from the comparative view of law, points moreover to the analogy with the legis aotio sacramento.
2 E. Hertzberg. Grundträkkene i den äldste norske Proces, p. 15-71. Fr. Brandt, Foreläsninger over den norske Retshistorie II, pp. 298-304.
*(2) Geist des röm. Rechts (3rd ed.) I, p. 297 seq.; Bernhöft in Zeitsehr. für vergi. R. W., II, 325, seq., 321, and in Staat und Recht, p. 227 seq. But cf. Mommsen, Staatsrecht II, Sect. 1, p. 44, p. 45, note 3.
** Bernhöft (in Staat und Recht, p. 227 seq., 113 seq., 119 seq.) assigns to the king of the pre-Roman time a similar function as arbiter.
1 This is corroborated by the account of Pomponius in L. 2, § 6, D. (1, 2) regarding the “praeesse privatis; “this account should, however, be compared with Mommsen, Staatsrecht II, Sect. 1, p. 45, note 3.
2 A. Pernice, zum röm. Sakralrecht I, p. 18, Note 5, pointe rightly to the analogous interpretation by Servius, Eclog. 3, 31. On what ground, Rudorff, Zeitschr. für gesch. R. W., Vol. 13, p. 199, Note 36, assumes that Isidor has in mind the corroborative oath and that its source is the saeramentum proceeding, he does not indicate.
3 See especially Bernhöft, Staat und Recht, p. 226 seq.
1 Keller (Wach.) Der röm. Civilprozess (6th ed.), p- 57 seq. Bernhöft, Staat und Recht, p. 229, Brinz, zur Contravindication der legis actio sacramento, espec. p. 113 seq. und p. 146.Baron, Festgaben für Heffter, p. 38 seq.
2 With regard to the compendious literature relating to the legis actio sacramentot I will take this position: Even among those who absolutely deny the wager nature of the sacramentum, we find repeatedly interpretations, which of necessity, lead to our view (Stintzing, Ueber das Verh. der leg. a. sacramento, etc., p. 9 seq.); if, moreover, these authors should have succeeded in proving that the legal procedure of the sacramentum is not in all respects a real wager, this would after all not constitute a denial of my view.
3 Cf. now A Pernice, zum röm. Sakralrecht, I, p. 17.
70 This viewpoint, where the complainant appoints his opponent under oath as judge is frequently expressed, I. 1. pr. Quar. rer. (44.5) Jusjurandum vicem rei judicatae obtinet, non immerito, cum ipse quis judieem adversarium suum de causa sua fecerit deferendo ei jusjurandum. L. 28, § 2 de jud. (5.1). Quintil. I. O. V. 6., § 4. litis adversarium judieem facit.
70a Liv. III 57 si ad judicem non eat, pro damnato in vincula duci jubere. L. 38 de jurejur. ( 12.2 ) : manifestae turpitudinis et confessionis est nolle nec jurare nec jusjurandum, referre.
70b According to the Twelve Tables: Si in jus vocat, ni it, antestator; igitur em capito; si calvitur pedemve struit, manum endo jacito.
70 O. E. Hartman, the ‘ Ordo judiciorum ’ I, p. 105 et seq.
71a The following exposition, taken unchanged from the first edition, in so far as it bears upon the objections raised against it, merely serves the purpose of a hypothetical construction of antiquity and of the ideas by which it was ruled. In historic times, the imperium of the king or of the magistrate clothed with the jurisdictio is in too great contrast with the position assigned in the text to the judge to permit our attempting to place both on a par. The order of the Prœtor in a suit for libel: mittite ambo hominem shows plainly that he did not derive his authority from the parties, that he was not their agent, but their superior.
72 Neminem, says Cioero pro Cluentio c 43, voluerant majores nostri non modo de existimationc cujusquam, sed ne pecuniaria quidem de re minima esse judicem, nisi qui inter adversarios convenisset.
73 Their origin is historically the same. Just as the state assumes the office of arbiter, without at first changing the nature of that office so the responding jurists were instituted. By the side of the public judge and the respondent there are actual arbiters and respondents not clothed with the jus respondendi and existing for sometime without legal attribution, until such attribution is at last conferred upon them, and judges and public respondents in the name of the state pronounce judgment possessing legal force.
74 For particulars in relation hereto, see § 18a.
75 Valerius Maximus Lib. II, c 8, no. 74 reports, that the dispute between a Consul and a Prætor as to which of the two deserved credit for a victorious naval battle, and to whom therefore, should have gone the triumph, became in this manner the object of a legal controversy; instead, however, of resorting to the older form of the sacramentum, they accepted the newer one of the sponsio. Valerius sponsione Lutatium provocavit : “ni suo duetu Punica olassis esset oppressa.” Nec dubitavit restipulari Lutatius. Hague judeas inter eos convenu Atilius Calatinus. The latter concludes his decision with the words: secundum te litem do.
76 Even in jurgare, litigare, it is equivalent to agere; but in the second word it must not be interpreted in the sense of litem agere, but as lite agere (just as jurgare means jure agere).
1 Ancient Law pp. 375 seq.
2 Pro Cluentio cap. 43.
1 See Madvig Verfassung ii pp. 218 sqq.; Mommsen St. R. iii 527 sqq.
2 A consular Fimbria is spoken of as a judex in a case told to Cicero as a boy (Cic. Off. iii 19 § 77). Fimbria was consul in 104 B. C. but he may not have been a senator at the time of the trial, and he may have been privately appointed.
3 See Madvig Verfassung i 182 sqq.; Mommsen St. R. iii p. 192.
4 Cf. Sen. Ben. iii 7 § 7 De quibusdam et imperitus judex demittere tabellam potest: . . . ubi vero id de quo sola sapientia decernit in controversiam incidit, non potest sumi ad haw judex ex turba senatorum quem census in album et equestris hereditas misit.
6 Relating to disputes between states and over land questions — modeled on procedure in Articles of Confederation.
7 Vote of Connecticut inserted, and that of North Carolina changed to conform to Journal.
